Going Beyond Legal: Grandfathering:

What Is It and If Consumers Knew

Volume 137, No. 1, Friday, June 29, 2012

As an advisor to cheese makers, investors, and anyone who wants to be a part of the dairy processing industry, the practice of grandfathering is the most difficult to understand.

For those unfamiliar with the concept of being “grandfathered in,” it is the practice of allowing an operator who was in production prior to a change in safety regulations to not be required to meet the same upgraded standard as a new entrant into the industry.

This is a common practice and one that is perhaps the most difficult to understand. As a rather literal person, regulations to me are regulations and they should apply to us all. It so happens that this is not the case. If you were fortunate enough to have been in operation prior to the introduction of a new rule, there is a possibility that you will not have to comply.

This is unacceptable on many levels: Food safety regulation should have only one function — that of protecting the health and safety of consumers. This protection is far more important today than in the past as the consuming public is more removed from the production of food than ever in history.

Consequently the consumer has little chance of being able to assess the food they consume. Caveat Emptor! Generally I mean this in a technical sense, but in all fairness, our food is being produced farther than ever from its point of consumption. The distance food now travels is revealing, and has led to the rise of movements like the “10, 20 or 100-Mile Diets” to promote healthier eating that also supports the local food supply.

If public health and safety is the goal of regulation, then one would think that as new discovery and processing requirements come into play, operators would be required to meet the standard. No? I can assure processors that consumers do expect and believe this; they do not accept two standards where only the new operator meets the safety requirements.

Sound like a Tale of Two Industries?

Grandfathering is definitely not just an issue for small operators. One of the most glaring/disappointing cases in recent history was a Listeria issue in a large meat plant.

After several years of analysis the
reports are telling us that a contributor to the problem was the age of the building, which determined its design and construction methods. The reports are never totally illuminating because, as consumers, we are expected to accept that our inspection agencies are looking into the issues in great depth and somehow that will solve the problem. The plant in question is still in production today. Sounds like Band-Aids were added, doesn’t it?

At what point should our regulators sit down with a processor and advise them that their building and equipment need to be upgraded or replaced?

Let’s consider the state that banned raw milk cheese production while allowing one historical producer to continue. Where is the level playing field? Who needs the updgrades?
• The Grade A processor who is operating in an historical building with wooden ceilings?
• Grade A processors who have shields above their filling operations to stop drips contacting product and packaging as it is being filled?
• The cheese maker who has trays on the top of his cheese to stop drips landing on the cheese?
• The cheese packaging operation that has drips falling down on the filling line from HVAC registers in the ceiling?
• The cheese maker who was told (an independent consultant was brought in to audit and advise) to add a positive air system to their production space when they had a Listeria problem before they could recommence production? (Other new operators setting up in the same state after this incident were required to put in extract fans only, no filtered air in, and were permitted to operate with open screened windows).

These may seem like trivial issues, but if something in a drip is unsafe for a product for instance, consider how far the drip splatters when it hits the horizontal shield. You can see how the problem grows exponentially.

Regulatory discrepancies happen because of the many influences in the System. An impacted industry puts pressure on their local politician, local politician puts pressure on the top bureaucrat, and it’s all downhill from there.

Observing operators with influence has never made me comfortable. What makes operators and their industries good is whether or not they make good decisions. A checks and balances system is absolutely necessary for regulating the decisions surrounding food processing safety.

If food safety is as much about
attitude as it is about regulation, “Grandfathering” is an attitude problem. It shows arrogance on the part of the operator, weakness on the part of the regulator, and corruption (or at the very least confusion) on the part of the politician.

The politician can be a problem because he/she is frequently unduly influenced by the business operator in his electorate. The politician wants profitable businesses in the district to create jobs etc. but he or she should not be able to overwhelmingly influence the decision-making processes surrounding public health and safety. The situation is compounded when states do not have similar regulations. Can the operator just pick up and move across the state line?

Additionally, many states do not enforce their own regulations equally. As an example, a new construction must have brine tanks set away from walls to ensure easy cleaning while existing operators are required to make no changes.

But in one case, a new operator was permitted to build brine tanks into a corner with no provision for cleaning. They placed a freon-based evaporator in the room directly above the brine tank, further impacting the potential for dripping from the condensate tray, the potential for leaking from the condensate tray and condensate drain that led the condensate away to waste.

If condensate drains are not properly installed, they certainly can leak. The freon gas lines to and from the evaporator are insulated, frequently becoming a major source of drips and contamination.

I have a long history of working with regulators and inspectors. What were acceptable practices when I began in this industry are not acceptable today and certainly should not be. I am certain that if we had consumers on a committee along with federal and state regulators, the Grandfather rule would be gone.

Remember that many of the top federal regulators came from the industry they regulate, so they already work closely with the processors. The potential for influence is clear. The creation of a working regulatory committee that includes consumers would improve the dynamic that has led to the current situation.

There is much room to improve the way we run our food industry. There are challenges ahead for which we either don’t have solutions or don’t want to make the change mostly because of cost.

Remove the Grandfather rule and we can expect to see change occur more quickly. NM

Neville McNaughton, president of Cheez Sorce, St. Louis, MO, has
many years of experience manufacturing dairy products in both New
Zealand and US. He has been a judge at several cheese competitions.
Neville will be writing a regular column in Cheese Reporter and will
take any questions regarding cheese manufacture. You can reach him
at neville@cheezsorce.com. His column is graciously sponsored by Hypred USA

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